FOI Laws: Counts Vary Depending on Definitions

28 October 2011

By Toby McIntosh

How many countries have freedom of information regimes?

a.)    86
b.)    87
c.)     88
d.)    90
e.)    more than 90
f.)     97
g.)    all of the above

The answer depends on the precise question and definitions.

While there is substantial consensus, disagreements exist at the margins for the handful of experts who have done counting. 

Principally, debate exists over whether a law is signed and in effect.   

Also, what’s a country? Bermuda? Kosovo? Cayman Islands?

Most list-makers are neutral as to the quality of the law or its implementation. The main example is Zimbabwe, which most lists include, although on notes that is “use primarily to restrict ATI and freedom of expression.” But things could change, observed one counter.

Also, a liberal interpretation is usually given to the mechanism used to establish a right to information regime. Thus, countries with administrative mandates and regulations are often included, such as China, Tunisia and Niger.

In the end, “about 90” may be the safest generalization.

For those insistent on more precision (drawing attention to the assumptions), a defensible single number answer –- today, counting laws and administrative systems “in force,” and taking a conservative stance on what constitutes a country – is 87.

But that number is about to grow.

Vleugels Says 88

Perhaps the most widely cited count is done by Dutch wobbing activist and writer Roger Vleugels, who recently put out his 2011 figures, his sixth annual census.

By his reckoning there are 88 countries that “have a FOIA in power.”

Vleugels does not include countries where the law is passed, but not yet signed or in effect.

There is debate over El Salvador, which makes his list. El Salvador has adopted a law, but it is not fully effective until May 2012, according to several Latin American experts consulted by FreedomInfo.org. The law passed in March 2011 but it set some deadlines to be achieved gradually before citizens can make use of the law next May.

Dropping El Salvador would leave 87 on his list. 

On the basis of the laws not yet being in operation, on which there is agreement, Vleugels does not include Mongolia, Guyana, or Malta.  Mongolia’s law, however, goes into effect soon, by the end of 2011. His count would not yet include Brazil, though it was just passed in the Senate and is expected to be signed. (See related FreedomInfo.org report.)

So by mid-2012, his total will be 90.

Others in the wings? See also FreedomInfo.org’s September review of efforts to pass FOI laws.

Or Is It 90 now?

A very similar count is used in the recent report rating 89 countries on their FOI laws. It was conducted by the Centre for Democracy and Law and Access Info. (See previous FreedomInfo.org story.)  

This tally includes El Salvador and Mongolia, where the legal framework – the subject of the study – is known. Malta’s law has been analyzed by CDL and Access Info, but it is not in the study because the government has suspended indefinitely the access provisions. Guyana’s law has been passed, but not signed.

The CDL/Access Info standard is to count countries where laws have been adopted and are in effect such that there is a scheduled date for when people can start filing requests.

That date – 180 days after publication – will soon be known for Brazil.

So: 90 is a good number: of countries that have adopted laws and administrative mechanisms.

5.5 Million People Covered by RTI

Anticipating Brazil’s membership in the club, Helen Darbishire, executive director of Access Info, calculated that the global total of people living in countries with right to information laws is 5,476,774,339.

“So, in total 5.5 billion people of the 7 billion people on the planet have the right to ask the government of the country they live in for information!” she said.

“Although we have only 90 out of 193 UN member states, that’s a lot of people. Definitely time to focus even more on implementation and measuring transparency in practice,” Darbishire said.

Higher Count by Banisar

David Banisar, who has been writing about international laws well before becoming senior legal counsel for Article 19, has 97 countries on his map:  89 with laws, eight with executive regulations.

He counts countries and functionally independent entities, thus including Hong Kong and the Cayman Islands, but not Scotland or Jersey. (Frustratingly, there is no accompanying list.)

He also includes countries where laws have passed, but are not in force, such as Mongolia and El Salvador.  

Brazil will raise his total to 98.

Lowest Count Quite Different

The lowest count, 86, is kept by the American University’s Collaboration of Government Secrecy.

This tally varies in several ways from the others: by including more places and by leaving out some countries for “nonimplementation.”

On the CGS list are Bermuda and the Cayman Islands, and more controversially Jersey and Scotland, which Vleugels includes only on his associated list of “subnational” entities and most others do not include.

In addition, the quality of the law is factored into the CGS tally. At last month’s “Fifth Annual International Right-to-Know Day Celebration” at AU, CGS specified that Uganda — along with Angola, Ethiopia, Niger and Tunisia — is not included on its current list “for non-implementation.” (Video from the conference is online.)

CGS also varies by not including Nicaragua and Guinea Conagry.

Right2Info List Includes Constitutional Provisions

The Right2Info website offers information on “constitutional provisions, laws and regulations” for 116 places. 

This higher number results from the inclusion of countries whose constitutions contain access to information clauses but which have not enacted laws, such as Kenya and the Philippines.

“The right of access to official information is now protected by the constitutions of some 60 countries. At least 46, and arguably 53 of these expressly guarantee a “right” to “information” or “documents,” or else impose an obligation on the government to make information available to the public,” according to Right2Info.

Getting to 90 Another Way

The Soros Foundation Access to Justice Initiative, which sponsors Right2Info, also maintains a list, with a total of 89, pre-Brazil.

The Justice Initiative, however, gets to 90 with different members than the others. The descriptive heading states:  “89 countries as of September 2011 (inc 5 with provisions in Admin Procedure Law) plus 5 countries with actionable ATI regulations, and 2 countries with actionable constitutional provisions.”

If the Justice Initiative were to incorporate in its total the five countries it says have “with actionable” access to information regulations (Argentina, Bolivia, China, Niger and Tunisia), the Justice Initiative total would be 95 (including Brazil).  Vleugels, CLD/Access Info and CGS include only China, Niger and Tunisia in their lists as having administrative regimes; not Bolivia and Argentina.

The Justice Initiative also rates Bermuda as a country, though not the Cayman Islands or Hong Kong.

Unique among the lists, the Justice Initiative tally includes Spain and Luxembourg, crediting them with administrative procedure provisions. 

Mongolia and Malta are in, but not El Salvador.

Note: All the lists include Kosovo. Although Kosovo is not yet a member of the United Nations, it has been recognized by some 85 other countries.

Vleugels’ B List; Standards

There are 53 places on Vleugels’ B1 List, which is subtitled “More or less close to a FOIA.”  CGS maintains a similar list: of nations “poised to join” the international transparency community, which currently stands at 43.

Vleugels also has a C1 List of 60 countries where there is “No sign of a FOIA.”

The “B” list seems a bit confusing with a column title suggesting that laws have been approved in Argentina, Brazil, Iran, Malaysia, Maldives, Rwanda and Sierra Leone. The intention, however, is to indicate that in most of those places laws have at one point or another been acted on by one part of the government.

He added seven countries to his A list from last year: El Salvador, Ethiopia, Guinea-Conakry, Liberia, Niger, Nigeria and Tunisia.

Vleugels’ full definitional statement:

One of the problems editing this Overview is that there is no good definition of a FOIA. The working definition I use includes: it has to be a law in strict sense, it must include the right of access to information, this right has to be enforceable and there must be complaint, court and high court appeal possibilities. [Decrees are included if they meet the same standards.]

 As a consequence this overview contains all kinds of FOIAs, including poor ones like those of for instance Italy and Zimbabwe.

A second important part of the definition, and in line with the practitioner’s point of view, is that the FOIA must be in power for at least the executive part of the trias politica [FI Ed: The division of state and federal government into three independent branches.].

As a consequence a FOIA which is only adopted or approved or is still a draft will be listed in the B-section of this overview.

I would like to add more ingredients to the definition. For instance I would like to skip FOIAs which require a special interest or FOIAs which charge for processing requests, or more in general FOIAs which do not meet the standards of, for instance, the Aarhus and Tromsø Treaties.

CGS Standards

CGS believes, according to Executive Director Dan Metcalfe, that the list should include as nations, entities that are sufficiently independent to have their own laws.

“Second, it must have a “FOIA regime” as a matter of statute as we know it here or effective national equivalent; a constitutional provision alone means nothing.  Hence, we regard Argentina’s presidential edict as the primary footnote to this; China’s “regulation” is a distant second, as I’ve been there and seen it operating as a nationwide statute,” according to Metcalfe.

“Third, it has to be implemented at the ground level, viably so, rather than treated mostly as a dead letter,” he said, adding:  “This past summer, for example, I had the opportunity to question first-hand the implementation in Angola and Uganda, and both were dropped from CGS’s list accordingly, even though I know Uganda issued regulations in June; it could make it back to our list next year.  And I also had the opportunity to cross-examine Ethiopia’s ambassador on its status; despite his initial broad claims, I can assure that that nation is not there yet.” 

Fourth, CGS will include a nation as “part of the international transparency community” once a law is signed; hence, the UK was there before the end of its 4+ year effectiveness period and folks here in the U.S. consider the FOIA to be 45 years old even though it’s been in effect for only 44 years.  And we’ll give a nation (especially a formerly repressive one) about a year or two to engage in viable implementation before “de-including” it; by that standard, Angola and Uganda admittedly ought to have been dropped sooner.”

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